While encryption was still under the watchful eye of the US Department of State, Bernstein wrote an encryption program called Snuffle. This was promptly classified as munitions under then existing International Traffic in Arms Regulations, which meant a licence was required if it were to be sent overseas.

The author of the Gigalaw piece, Shubha Ghosh, argues that the requirement of a licence silenced Bernstein and imposed a prior restraint on his speech, a restraint that "could not be justified by national security interests".

Bernstein also takes this view: he filed a lawsuit claiming that the regulations were unconstitutional, and that they violated of his rights of free speech under the First Amendment. The district court found in his favour.

But the fight has not stopped there. While the case was pending, responsibility for encryption was shifted from the State department to the Department of Commerce, and Bernstein moved to include it in his lawsuit.

Ghosh outlines the ramifications of the case, which seem to hinge on the difference between speech and conduct. If a piece of software is classified as speech then all software falls outside government regulation because of the First Amendment.

However, if it is classed as conduct it is no longer protected by the First Amendment, which could lead to government intrusion into new areas of academic research. "How, then," asks Ghosh, "to protect the academic without also leaving the computer industry free from regulation?"

As yet, no ruling has been made on the case, which could prove to be a very important one for the software industry, at the very least. ®